Federal Court

Civil Procedure


No agreement on question to be determined

Motion by defendant to have court determine preliminary question of law. Defendant wanted determination of whether plaintiff was interested person pursuant to s. 60(1) of Patent Act (Can.), with respect to patent claims other than 10, 18 and 23. Plaintiff commenced action for declaration defendant’s ‘446 patent was invalid and plaintiff’s sildenafil tablets would not infringe patent. Defendant denied plaintiff had standing to sue. Prior to litigation, defendant had disclaimed certain patent claims and provided unilateral covenant not to sue plaintiff on claims other than 10, 18 and 23, so argued plaintiff had no standing as interested person to impeach other claims. Motion dismissed. There was no agreement on question to be determined and plaintiff vigorously contested motion. Regardless of answer, litigation would continue on at least three claims and defendant had not shown that reducing number of claims would reduce expense, time, amount of evidence or complexity. Proposed question was difficult and may not be able to be readily answered in few days remaining before trial. Further delay would prejudice plaintiff, who wanted to market its product.

Apotex Inc. v. Pfizer Ireland Pharmaceuticals (Nov. 8, 2012, F.C., Zinn J., File No. T-772-09) 223 A.C.W.S. (3d) 65.

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